Would Colorado's Courts Overturn Restrictions on Marijuana Ads?


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Last week I noted that the marijuana ad restrictions supported by Colorado's Amendment 64 Implementation Task Force seem vulnerable to challenge under the state constitution's free speech clause. The task force, appointed by Gov. John Hickenlooper to advise the state legislature on how to regulate the newly legal recreational marijuana industry, recommends that advertising by state-licensed pot stores be restricted to "adult-oriented" publications and websites. Yet the U.S. Supreme Court has rejected far more modest restrictions on tobacco advertising that were likewise aimed at shielding minors from messages about products they are not allowed to buy. It is hard to see how advertising rules as restrictive as those favored by the task force could survive a legal challenge, I said, unless Colorado's courts read the state constitution's free speech guarantee more narrowly than the Supreme Court reads the First Amendment. In fact, says Steven Zansberg, a Denver attorney who specializes in free speech cases, the opposite is true: The Colorado Supreme Court has repeatedly held that Article II, Section 10, of the state constitution, which prohibits any law "impairing the freedom of speech" and promises that "every person shall be free to speak, write or publish whatever he will on any subject," is more protective than the First Amendment.

Zansberg cites several examples. In People v. Seven Thirty-Five E. Colfax (1985), the Colorado Supreme Court overturned provisions of the state obscenity statute, noting that "the Colorado Constitution provides broader protection for freedom of speech than does the first amendment to the United States Constitution." In Bock v. Westminster Co. (1991), the court deemed the language of Article II, Section 10 broad enough to cover speech on private property‚ÄĒspecifically, the distribution of political pamphlets in the "public areas" of a shopping mall. (I discussed this decision, which strikes me as wrongheaded, in a 2010 post about a man who was banned from a mall in Aurora because he was wearing a "Yes, We Cannabis" T-shirt.) In Tattered Cover v. City of Thornton (2002), the court ruled that "the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records." Such a safeguard is necessary, it said, to "protect an individual's fundamental right to purchase books anonymously, free from governmental interference."

None of these cases dealt specifically with commercial speech, and in 1981 the Colorado Supreme Court did uphold a Denver ordinance that limited the number of signs a business could display, citing the public's "right to be free from intrusive signs and billboards." But the court emphasized that "the restrictions are not related to the suppression of free speech," because the ordinance "simply limits the number of signs." In other words, Zansberg says, "the limitation applied irrespective of the content of the signs." He adds that "the same could not be said about a statute that limits advertising communications based expressly upon their content," as marijuana ad restrictions would.

Among other things, the Amendment 64 task force wants the legislature to ban all outdoor ads for marijuana, which is just the sort of policy that the U.S. Supreme Court deemed unconstitutional in Lorillard Tobacco v. Reilly, the 2001 case in which it overturned a Massachusetts ban on tobacco billboards within 1,000 feet of a school or playground. The Court worried that in some cities the rule amounted to "nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers." Because "the sale and use of tobacco products by adults is a legal activity," the Court said, "we must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." As a result of Amendment 64, the sale and use of marijuana products likewise will be legal in Colorado, meaning that marijuana growers, retailers, and consumers should have similar constitutionally protected interests under Article II, Section 10.